U.S. v. Valverde, No. 09-10063 (12-27-10) (Reinhardt with Schroeder and Hawkins).

The 9th holds that the effective date of the retroactivity provision of SORNA is August 1, 2008, the date on which the provision fulfilled the requirements of APA and publication. An earlier date, February 28, 2007, for an interim rule, is not effective because the Attorney General's justifications, to refute uncertainty and for public safety, were not valid upon close examination. The case concerned the defendant who was a sex offender under California law. Released in January 2008, he moved to Missouri and failed to register. He was charged with a violation of SORNA. He argues that SORNA did not yet retroactively apply to him because the interim rule, issued on February 28, 2007, was invalid. Congress had delegated to the AG the determination of retroactivity. The AG had issued the interim rule for retroactivity, under the APA's exception clause, to supposedly deal with the uncertainty of retroactive application and to protect the public. The interim rule was not valid, held the 9th. First, the uncertainty was undermined by the delay in issuing any interim rules, and because this exception would threaten to swallow the interim rule permanently. There was no real issue of uncertainty. As for public safety, again there was a delay, and the defendant was covered by a myriad of other state registration requirements. The AG's decision was not supported and an abuse of discretion. This decision adds to the circuit split on this issue: the 4th, 7th, and 11th held that the AG's interim was valid; the 6th and now the 9th have held it was invalid.

Congratulations to Rachelle Barbour and David Porter of the FPD, E.D. Ca. (Sacramento).

McCullough v. Kane, No. 07-16049 (12-27-10)(B. Fletcher with Berzon; dissent by Rawlinson).

The 9th decides that the California governor's 2004 reversal of the petitioner's parole recommendation from the board violated due process. The petitioner had been convicted of second-degree murder (he smashed the skull of a man sleeping in a car and stole his money to buy drugs). In the years since, petitioner became a model prisoner and was rehabilitated. The governor's denial of parole, despite the board's recommendation, was because of the senselessness of the crime. The issue here revolves around whether the nature of the offense, by itself, is enough. The majority finds it is not. It relied upon a state supreme court decision that stressed that just looking at the crime's facts was insufficient, because the focus should be on future dangerousness, although the nature of the crime was part of the analysis. The majority discusses the inconsistencies in the state courts' opinions and analysis. Reliance upon the state's decision was not reasonable. There was, moreover, as established by the 9th, a liberty interest in the reasoned application of the parole decisions. In dissent, Rawlinson argues that the focus should be on federal precedent, which held that the state could look exclusively at the nature of the crime. The majority's riposte was that the state decision was subsequent to that precedent, and refined the test, which was used by the 9th in its en banc decision in finding a liberty interest.

U.S. v. Alvarez-Perez, No. 09-50334 (12-22-10) (Singleton, Sr. D.J., D. Alaska, with Kozinski and Wardlaw).

"Time," sang the Rolling Stones in 1964, "is on my side." "Yes it is," when it comes to the Speedy Trial Act (STA). Here, the defendant, charged with a 1326 illegal reentry, waived indictment, indicated a desire to proceed under the fast-track provisions, and agreed to proceed by Information. He plead "not guilty" and then set up a change of plea, only to change his mind. The government then indicted, with a different case number. The defendant again indicated a desire to plead guilty, only to again get cold feet. Setting the case for trial, the court used the arraignment date, and not the indictment date. The case was eventually tried, with counsel making a STA motion orally before trial. Counsel argued that the clock started running with the indictment, and that, by calculation and tolling, the time for trial was two days over. The motion was denied. On appeal, the government argues that the Indictment had a separate number and that the date ran from arraignment. Come on, holds the 9th, it is a case of form over substance, because the charges remained the same, and it is more akin to a re-indictment or superseding, which inherits the STA clock. The 9th agrees that the clock starts ticking after the Indictment was handed down. Although the defendant did not object to the trial date outside the STA time, it was not a waiver, because STA is mandatory. As to moving before trial, counsel did so orally, although a written motion is better practice. Moreover, this was not a case of estoppel; counsel did not invite error. Having found that time indeed was on Defendant's side, Defendant wants the dismissal with prejudice. To quote The Rolling Stones again, "Now you were saying that you want to be free...." Not so fast, holds the 9th. The test for prejudice requires a look at the offense (deemed serious because of the priors), that the violation be long (it was not), that there would be an impact on the administration of justice (this was not some sort of gaming by the prosecution, but a computational error), and that there was prejudice in the defense (hard to see). Thus, dismissal is without prejudice. "You'll come running back (I said so many times before)."

Congratulations to Bridget Kennedy, Federal Defenders of San Diego, for the win.

Pulido v. Hedgepeth, No. 05-15916 (12-21-10) (O'Scannlain and Goodwin; dissent by Thomas).

On a remand from the Supremes to see if an error in the jury instructions was prejudicial, the 9th held it was not. This is a murder case, where the petitioner got LWOP. Convicted of felony-murder and other offenses, he argued that the jury instructions, read together, impermissibly allowed him to be convicted of felony murder even if he had formed the intent to aid and abet the robbery after the victim had been murdered. Indeed, that was his defense at trial, where the jury deadlocked on some counts, and sent out scores of questions relating to felony murder and intent. The 9th discussed the meaning of prejudice and whether there was a "substantial and injurious effect or influence on the verdict" or whether the court has "grave doubt" as to whether there was an impact. Grave doubt is defined as the unusual circumstance where the court feels itself in a virtual equipoise as to the harmlessness. The instructions here were not so prejudicial, as in the majority's reading, the jury was questioning intent and not timing of actions. Dissenting, Thomas argues that a careful parsing of the jury questions indicate at least one juror that would have likely acquitted on felony murder because of the timing of involvement, and the subsequent intent. Thomas has grave doubt.